COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

MARTIN M. MILLER 

 OPINION BY 

v. Record No. 2040-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 4, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Robert W. Wooldridge, Jr., Judge 

 Judith M. Barger, Assistant Public Defender, 

for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Martin M. Miller was convicted for knowingly and 

intentionally possessing a firearm after having been previously 

convicted of a felony, in violation of Code § 18.2-308.2. 

Raising an issue of first impression in the Commonwealth, Miller 

argues that his conviction was obtained in violation of his right 

to due process of law. We agree, reverse his conviction and 

dismiss the charge against him. 

 I. 

 Miller, a convicted felon, knew he was prohibited from 

possessing a firearm. Knowing the prohibition extended to his 

hunting activities, Miller, a lifetime hunter, sold his hunting 

guns following his conviction. He continued to hunt with a bow 

and arrows until his bow was stolen. 

 Wanting to pursue his sport, Miller sought to determine 
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whether he, as a convicted felon, could possess a muzzle-loading 

rifle. Miller knew that Virginia law distinguished 

muzzle-loading rifles from other guns. Specifically, he knew 

that Virginia did not require a criminal background check to be 

performed on individuals seeking to purchase muzzle-loading 

rifles. He also knew that Virginia defined different hunting 

seasons for and issued different licenses to hunters using 

muzzle-loading rifles. 

 Miller testified that he "talked to everyone who [he] 

thought might know the answer." He spoke with his probation 

officer, who told him he could have a muzzle-loading rifle. He 

also inquired of the Federal Bureau of Alcohol, Tobacco and 

Firearms (ATF) and the Virginia Department of Game and Inland 

Fisheries (VDGIF), and representatives from each, who knew Miller 

was a convicted felon, told him he could have a muzzle loader. 

Miller acknowledged that no one told him he could possess a 

"firearm" and that a muzzle loader was "in a sense" a firearm 

because "it fires." Relying on the interpretation provided by 

the government officials contacted, Miller purchased a muzzle 

loader and obtained a license to hunt with it. In short, Miller, 

a convicted felon, knowingly and intentionally possessed a 

muzzle-loading rifle. 

 Miller's possession of the muzzle loader was discovered by 

police officers during an unrelated search of the house in which 

Miller was living. Charged with possession of the gun as a 
- 3 - 

 

convicted felon under Code § 18.2-308.2, Miller argued at trial 

that his muzzle loader was not a "firearm" within the meaning of 

the statute. The trial court disagreed, and Miller has now 

abandoned that contention. Thus, for purposes of this appeal, we 

will assume without deciding that Miller's muzzle loader was a 

"firearm" within the meaning of Code § 18.2-308.2. 

 Miller argued at trial that his "good faith reliance" on the 

advice he received regarding the propriety of his possession of 

the muzzle loader, regardless of the accuracy of that advice, 

precludes his conviction. His argument is grounded in the due 

process clause of the Fourteenth Amendment. The trial court 

believed Miller's testimony concerning the content of the 

information he received but concluded that the sources of 

Miller's information were not sufficient to preclude his 

conviction on due process grounds.1

 II. 

 1In particular, the court stated, "I don't believe that his 

conversations with ATF or [VDGIF] . . . come close to rising to 

the level of something upon which he could properly rely in his 

position." Continuing, the trial court stated that it was "much 

more concerned" about Miller's conversation with his probation 

officer. The court stated, "the probation officer acts in a much 

more direct way with this Defendant and is an arm of the 

Commonwealth for this Defendant's purposes." "But," the court 

found, 

 I am unpersuaded actually, based upon the 

testimony that was provided, that the 

probation officer was in such a position 

relative to this Defendant that would rise to 

the level of the authorities in the cases in 

which this defense has been recognized. 
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 Reflecting the axiom that everyone is "presumed to know the 

law," the common law rule that "ignorance of the law is no 

excuse" admitted of few exceptions. See People v. Studifin, 504 

N.Y.S.2d 608, 609 (N.Y. Sup. Ct. 1986); Wimbish v. Commonwealth, 

75 Va. 839, 844 (1880). The common law position was based on the 

fact that most common law crimes were malum in se. Studifin, 504 

N.Y.S.2d at 609. Seen as "inherently and essentially evil . . . 

without any regard to the fact of [their] being noticed or 

punished by the law of the state," Black's Law Dictionary 959 

(6th ed. 1990), ignorance of the prohibition of such crimes was 

simply untenable. 

 The rationale underlying the rule is less compelling for 

crimes that are malum prohibitum, viz., acts that are "wrong 

because prohibited," not by virtue of their inherent character. 

Black's Law Dictionary 960 (6th ed. 1990); see generally

Studifin, 504 N.Y.S.2d at 609-10. Yet, the proposition that 

ignorance of the law is no excuse generally maintains with 

respect to crimes malum prohibitum, largely for pragmatic 

purposes. Studifin, 504 N.Y.S.2d at 610; see also 21 Am. Jur. 2d 

Criminal Law § 142 (1981) (Without the rule, "chaos and 

impossibility of law enforcement would ensue.") (citation 

omitted). Although leading at times to seemingly "unfair" 

results, rigid application of the rule promotes the policy it 

serves: "to encourage people to learn and know the law." E.g., 

Clark v. State, 739 P.2d 777, 779 (Ak. 1987); see also Wimbish, 
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75 Va. at 845; Oliver W. Holmes, The Common Law 48 (1881) ("It is 

no doubt true that there are many cases in which the criminal 

could not have known that he was breaking the law, but to admit 

the excuse at all would be to encourage ignorance where the 

law-maker has determined to make men know and obey . . . ."). 

 Nonetheless, "[w]ith `the increasing complexity of law, the 

multiplication of crimes mala prohibita, and a more exact 

definition of fundamental principles of criminal liability,' 

certain exceptions to the general rule have emerged." Studifin, 

504 N.Y.S.2d at 610 (citation omitted). It is such an exception 

that we address in the present case.2

 The exception at issue addresses the legal consequences of a 

violation of the criminal law by an individual who takes measures 

to learn what conduct the government has proscribed, but is 

misadvised by the government itself. A number of states have 

adopted statutes bearing on the subject, but Virginia has not. 

See generally Jeffrey F. Ghent, Annotation, Criminal Law: 

"Official Statement" Mistake of Law Defense, 89 A.L.R.4th 1026 

(1991).3 Miller, thus constrained to rely on constitutional 

 2The defense Miller advances has been characterized as "`a 

narrow exception to the general principle that ignorance of the 

law is no defense,'" e.g., United States v. Aquino-Chacon, 109 

F.3d 936, 938 (4th Cir. 1997) (quoting United States v. 

Etheridge, 932 F.2d 318, 321 (4th Cir. 1991)), which should be 

applied with "`great caution.'" United States v. Abcasis, 45 

F.3d 39, 45 (2d Cir. 1995) (quoting United States v. Corso, 20 

F.3d 521, 528 (2d Cir. 1994)). 

 3A typical formulation of the exception is reflected in 

§ 2.04(3)(b) of the Model Penal Code, which provides that a 

belief that conduct does not legally constitute an offense is a 
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principles for his defense, contends that his prosecution and 

conviction for possessing a firearm violates his right to due 

process of law. 

 The defense Miller advances grew from a trilogy of United 

States Supreme Court cases, Raley v. Ohio, 360 U.S. 423 (1959); 

Cox v. Louisiana, 379 U.S. 559 (1965); United States v. 

Pennsylvania Chem. Corp., 411 U.S. 655 (1973) (PICCO). The 

defendants in Raley were called to answer questions before the 

Ohio State legislature's "Un-American Activities Commission." 

The chairman of the Commission apprised the defendants that, at 

the inquiry, they were entitled to rely upon the privilege 

against self-incrimination. A state immunity statute, however, 

deprived the defendants of the protection of the privilege. 

After relying upon the privilege, the defendants were indicted 

for failing to answer the Commission's questions. The Ohio 

Supreme Court held that the defendants were presumed to know that 

the law deprived them of the protection of the privilege and 

that, therefore, they had committed an offense by failing to 

answer the questions to which they asserted the privilege. The 

United States Supreme Court reversed the convictions, finding 

(..continued) 

defense to a prosecution for that offense based on such conduct 

when the defendant acts in reasonable reliance on an official 

statement of the law, afterward determined to be invalid or 

erroneous, contained in (1) a statute or other enactment; (2) a 

judicial decision, opinion, or judgment; (3) an administrative 

order or grant of permission; or (4) an official interpretation 

of the public officer or body charged by law with responsibility 

for the interpretation, administration, or enforcement of the law 

defining the offense. Ghent, supra, at 1030. 
- 7 - 

that "the Chairman of the Commission, who clearly appeared to be 

the agent of the State in a position to give such assurances, 

apprised [the defendants] that the privilege in fact existed." 

360 U.S. at 437. The Court further noted that "other members of 

the Commission and its counsel made statements which were totally 

inconsistent with any belief in the applicability of the immunity 

statute, and it is fair to characterize the whole conduct of the 

inquiry . . . as identical with what it would have been if Ohio 

had had no immunity statute at all." Id. at 438. The Court 

found the representations of the Commission "active[ly] 

misleading," not "simply vague or even contradictory," and 

although the representations were legally erroneous, the 

Commission was "the voice of the State most presently speaking to 

the [defendants]." Id. at 438-39. The Court concluded that to 

sustain the convictions "would be to sanction the most 

indefensible sort of entrapment by the State--convicting a 

citizen for exercising a privilege which the State clearly had 

told him was available to him." Id. at 438. 

 The defendant in Cox was convicted for demonstrating "near" 

a courthouse in violation of a Louisiana statute. The United 

States Supreme Court reversed the conviction, finding that "the 

highest police officials of the city, in the presence of the 

Sheriff and Mayor, in effect told the demonstrators that they 

could meet where they did." 379 U.S. at 571. The Court noted 

the "lack of specificity" in the use of the word "near" in the 
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statute, which the court found "foresees a degree of on the spot 

administrative interpretation by officials charged with 

responsibility for administering and enforcing it." Id. at 568. 

 The Court found it apparent that demonstrators "would 

justifiably tend to rely on [an] administrative interpretation of 

how `near' the courthouse a particular demonstration might take 

place." Id. at 569. Applying Raley, the Court reversed the 

defendant's conviction for demonstrating "near" the courthouse 

after he had been told that his demonstration was not "near" the 

courthouse. Id. at 571. 

 The defendant corporation in PICCO was convicted for 

discharging industrial refuse into a river, in violation of § 13 

of the Rivers and Harbors Act of 1899. In its regulations 

promulgated under the Act, the Army Corps of Engineers had 

consistently construed § 13 as limited to discharges that 

affected navigation. PICCO's discharge was such that it would 

not affect navigation. Relying on Raley and Cox, the Court 

reversed the conviction, finding 

 [t]here can be no question that PICCO had a 

right to look to the Corps of Engineers' 

regulations for guidance. The Corps is the 

responsible administrative agency under the 

1899 Act, and "the rulings, interpretations 

and opinions of the [responsible agency] 

. . . , while not controlling upon the courts 

by reason of their authority, do constitute a 

body of experience and informed judgment to 

which . . . litigants may properly resort for 

guidance." Moreover, although the 

regulations did not of themselves purport to 

create or define the statutory offense in 

question, it is certainly true that their 

designed purpose was to guide persons as to 
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the meaning and requirements of the statute. 

411 U.S. at 674 (citations omitted). The Court remanded the case 

for a determination of whether PICCO's reliance was reasonable. 

 The defense derived from the Raley, Cox, PICCO trilogy 

applies where a defendant has reasonably relied upon affirmative 

assurances that certain conduct is lawful, when those assurances 

are given by a public officer or body charged by law with 

responsibility for defining permissible conduct with respect to 

the offense at issue. The defense is a due process defense, 

Raley, 360 U.S. at 437; Cox, 379 U.S. at 571, grounded in 

"traditional notions of fairness inherent in our system of 

criminal justice." PICCO, 411 U.S. at 674; United States v. 

Caron, 64 F.3d 713, 715 (1st Cir. 1995) (applying standard of 

fundamental fairness), modified in part on other grounds, 77 F.3d 

1 (1st Cir. 1996), cert. denied, 116 S. Ct. 2569 (1996); United 

States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994); United 

States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990); United 

States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United 

States v. Conley, 859 F. Supp. 909, 932 (W.D. Pa. 1994); United 

States v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989). See 

generally Sean Connelly, Bad Advice: The Entrapment by Estoppel 

Doctrine in Criminal Law, 48 U. Miami L. Rev. 627, 632 (1994) 

(characterizing Raley and Cox as grounded in "substantive due 

process" analysis). 

Raley relied on prior United States Supreme Court cases 
- 10 - 

addressing elementary notions of fairness in the criminal 

process, and emphasized that "criminal sanctions are not 

supportable if they are to be imposed under `vague and undefined' 

commands (citing Lanzetta v. New Jersey, 306 U.S. 451 (1939)); or 

if they are `inexplicably contradictory' (citing United States v. 

Cardiff, 344 U.S. 174 (1952)); and certainly not if the 

Government's conduct constitutes `active misleading' (citing 

Johnson v. United States, 318 U.S. 189, 197 (1943))." United 

States v. Laub, 385 U.S. 475, 487 (1967). 

 The due process argument is, in essence, "that the criminal 

statute under which the defendant is being prosecuted cannot 

constitutionally be applied to the defendant without violating 

due process of law, where government officials have misled the 

defendant into believing that his conduct was not prohibited." 

Ghent, supra, at 1031; see also Studifin, 504 N.Y.S.2d at 610 

("[F]or the state to prosecute someone for innocently acting upon 

such mistaken advice is akin to throwing water on a man and 

arresting him because he's wet.").4

 

 4The defense has come to be known as "entrapment by 

estoppel," although it is neither "entrapment," see Note, 

Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 

1046, 1046-47 (1969), nor "an estoppel at all in any meaningful 

sense." Brady, 710 F. Supp. at 295. Indeed, the Supreme Court 

has never used the term "entrapment by estoppel." Moreover, 

neither Raley nor Cox use the word "estoppel," and it remains 

unclear whether the Supreme Court considers PICCO to have been 

decided on estoppel grounds. Compare Heckler v. Community Health 

Services, 467 U.S. 51, 60 n.12 (1984) (suggesting PICCO decided 

on estoppel grounds), with id. at 68 (Rehnquist, J., concurring 

in the judgment) (stating that PICCO was not an estoppel case). 

 The "entrapment by estoppel" misnomer inhibits clear 
- 11 - 

 The ultimate due process inquiry is whether a defendant's 

conviction, for reasonably and in good faith doing that which he 

was told he could do, is fundamentally unfair in light of the 

content of the information he received and its source. The cases 

addressing the defense demonstrate that the defendant must 

establish, as a threshold matter, the legal sufficiency of the 

content and source of the information received. See PICCO, 411 

U.S. at 674-75 (establishing threshold determination that defense 

was legally "available"). The application of the defense then 

requires a factual determination whether the defendant's reliance 

upon the information received was reasonable and in good faith. 

See id.5 The defendant bears the burden of establishing the 

(..continued) 

analysis and application of the defense, because the use of the 

word "estoppel" unnecessarily places the due process basis for 

the defense in conflict with the well-established principle that 

"the Government may not be estopped on the same terms as any 

other litigant." Heckler, 467 U.S. at 60; see also Sink v. 

Commonwealth, 13 Va. App. 544, 548, 413 S.E.2d 658, 660 (1992) 

("[T]he doctrine of estoppel does not prevent the Commonwealth 

from enforcing laws in its governmental function."). 

Furthermore, the use of the word "estoppel" improvidently 

suggests that the dispositive analysis is grounded in the 

application of agency principles rather than constitutional 

concerns. See Brady, 710 F. Supp. at 295 ("[T]he doctrine stems 

from the due process clause, not from the common law of contract, 

equity or agency."); see also Austin, 915 F.2d at 366 (same); 

Conley, 859 F. Supp. at 932 ("The focus of the Due Process 

inquiry into fundamental fairness and substantial justice . . . 

should not be arbitrarily constrained by concepts taken from 

other contexts such as estoppel, actual authority or 

deterrence."). 

 5Of course, the reasonableness of a defendant's reliance is 

inextricably linked to the content of the information received 

and its source. See, e.g., Howell, 37 F.3d at 1204 (Reliance 

must be reasonable "in light of the identity of the agent, the 

point of law represented, and the substance of the 

misrepresentation."). Ultimately, however, "reasonableness" can 
- 12 - 

affirmative defense. See id. at 675; Howell, 37 F.2d at 1205.6

 With respect to content, the defense is available only where 

the information upon which the defendant has relied is an 

affirmative assurance that the conduct giving rise to the 

conviction is lawful. In the absence of such an affirmative 

assurance, the due process concerns that the defense is designed 

to protect are not implicated, and the defense fails. See

Aquino-Chacon, 109 F.3d at 939; United States v. Lowenstein, 108 

F.3d 80, 83 (6th Cir. 1997); United States v. Trevino-Martinez, 

86 F.3d 65, 69 (5th Cir. 1996), cert. denied, 117 S. Ct. 1109 

(1997); United States v. Neville, 82 F.3d 750, 761-62 (7th Cir.), 

cert. denied, 117 S. Ct. 249 (1996); United States v. Achter, 52 

F.3d 753, 755 (8th Cir. 1995); United States v. French, 46 F.3d 

710, 714 (8th Cir. 1995); Howell, 37 F.3d at 1205; United States 

v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994); United States 

(..continued) 

be determined only after a finding that the content and source of 

the information are legally sufficient to invoke due process 

concerns. 

 6We note that the seriousness of the crime at issue as well 

as other policy concerns may preclude the application of the 

defense as a matter of law. See Cox, 379 U.S. at 569 ("Obviously 

telling demonstrators how far from the courthouse steps is 'near' 

the courthouse for purposes of a permissible peaceful 

demonstration is a far cry from allowing one to commit, for 

example, murder, or robbery."); Connelly, supra, at 636 

(explaining that even where the technical elements of the defense 

are found, the court could still refuse to apply the defense when 

policy considerations so demand). See generally Note, supra, at 

1060 (discussing nature of the offense at issue). Indeed, we 

believe it could scarcely be said that an individual could 

reasonably and in good faith rely on advice condoning the 

commission of a serious crime. We find the present case to 

invoke no such concern. 
- 13 - 

v. Trancoso, 23 F.3d 612, 615 (1st Cir. 1994); United States v. 

Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994); United States v. 

Corso, 20 F.3d 521, 528 (2d Cir. 1994); United States v. Woodley, 

9 F.3d 774, 779 (9th Cir. 1993); United States v. Bazargan, 992 

F.2d 844, 849 (8th Cir. 1993); United States v. Clark, 986 F.2d 

65, 69 (4th Cir. 1993); United States v. Long, 977 F.2d 1264, 

1270-71 (8th Cir. 1992); United States v. LaChapelle, 969 F.2d 

632, 637 (8th Cir. 1992); United States v. Hurst, 951 F.2d 1490, 

1499 (6th Cir. 1991); United States v. Brebner, 951 F.2d 1017, 

1025 (9th Cir. 1991); United States v. Smith, 940 F.2d 710, 715 

(1st Cir. 1991); United States v. Paez, 866 F. Supp. 62, 66 

(D.P.R. 1994); Conley, 859 F. Supp. at 934. 

 As to the source of the information, it must be established 

that the information was received from a "government official." 

See Clark, 986 F.2d at 69 (taxidermist not government official); 

United States v. Indelicato, 887 F. Supp. 23, 25 (D. Mass. 1995), 

modified in part on other grounds, 97 F.3d 627 (1st Cir. 1996), 

cert. denied, 117 S. Ct. 1013 (1997) (private attorney not 

government official). Compare Howell, 37 F.3d at 1206 (private 

firearms dealer licensed by government not government official), 

United States v. Billue, 994 F.2d 1562, 1568-69 (11th Cir. 1993) 

(same), and Austin, 915 F.2d at 366-67 (same), with United States 

v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987) (firearms 

licensee is government official). Indeed, "[t]his is necessary 

as a matter of constitutional law because the Due Process Clause 
- 14 - 

. . . is limited to `state action.'" Connelly, supra, at 633. 

 However, a government official's status as "state actor" has 

not alone been sufficient to invoke the defense in cases 

recognizing its availability. The issue is not whether an 

"agent" of the state has bound the government by his or her word. 

 The issue is whether convicting an individual who has reasonably 

relied on the advice of a state actor is so fundamentally unfair 

as to raise due process concerns. Such concerns are implicated 

only when the source of the information is a public officer or 

body charged by law with responsibility for defining permissible 

conduct with respect to the offense at issue. See Raley, 360 

U.S. at 439 (source of information was Commission conducting 

inquiry at which defendants asserted privilege against 

self-incrimination); Cox, 379 U.S. at 568 (sources of information 

were highest police officials of city, who were "charged with 

responsibility for administering and enforcing" statute by virtue 

of legislature's use of word "near," which "fore[saw] a degree of 

on-the-spot administrative interpretation" of permissible 

conduct); PICCO, 411 U.S. at 674 (source was Corps of Army 

Engineers, which was "the responsible administrative agency under 

the [Act defining the offense]" and whose "`rulings, 

interpretations and opinions . . . constitute a body of 

experience and informed judgment to which . . . litigants may 

properly resort for guidance'" as to what conduct was 

permissible); Abcasis, 45 F.3d at 43 (source was law enforcement 
- 15 - 

agent who allegedly solicited defendant to engage in otherwise 

criminal conduct as a cooperating informant); United States v. 

Thompson, 25 F.3d 1558, 1565 (11th Cir. 1994) (same); Hedges, 912 

F.2d at 1405 (source was Air Force Standards of Conduct Officer 

who by regulations and direct orders was charged with advising 

officer personnel of conflict of interest problems and who 

allegedly advised defendant prosecuted under conflict of interest 

statute that his conduct did not amount to a conflict of 

interest); Brady, 710 F. Supp. at 295 (source was state judge who 

had constitutional duty to interpret and apply federal law); 

Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993) 

(source was State Attorney General, who was "the chief law 

officer of the Commonwealth, with the power to set a unified and 

consistent legal policy for the Commonwealth," was "statutorily 

empowered to `give his opinion upon questions of law submitted to 

him,'" and was "acting in an area of his official 

responsibilities" in issuing opinion upon which defendants 

allegedly relied); Tallmadge, 829 F.2d at 774 (source was federal 

firearms licensee charged by Congress with affirmative duty to 

question customers concerning criminal record and required by 

Treasury Department to inform buyers concerning the restrictions 

imposed by Congress on the purchase of firearms).7

 Many cases involve a defendant who seeks to invoke the 

 

 7But see Howell, 37 F.3d at 1206 (private firearms dealer 

not even "state actor"); Billue, 994 F.2d at 1568-69 (same); 

Austin, 915 F.2d at 366-67 (same). 
- 16 - 

defense as a bar to prosecution by one sovereign for advice 

received from an official of another sovereign. The defense has 

been nearly universally rejected in this dual-sovereign context. 

See generally Caron, 64 F.3d at 715-16. The only exceptions are 

cases where a defendant has relied on the advice of a state judge 

with respect to federal law. These cases are thought to raise 

sufficient fairness concerns to warrant application of the 

defense as a bar to federal prosecution. Compare Brady, 710 F. 

Supp. at 295, with United States v. Etheridge, 932 F.2d 318, 321 

(4th Cir.), and United States v. Bruscantini, 761 F.2d 640, 642 

(11th Cir.). Brady, which applied the defense, addressed the 

fairness concerns inherent in that context by virtue of the state 

court judge's constitutional duty to interpret and apply federal 

law. Conversely, Bruscantini and Etheridge concluded that the 

dual-sovereignty context eviscerated the fairness concerns giving 

rise to the defense. 

 The rule of Cox and Raley is a narrow 

exception to the general principle that 

ignorance of the law is no defense. It was 

prompted by the Court's observation that 

permitting the government to prosecute 

individuals who reasonably rely upon that 

government's interpretation of the law would 

constitute a kind of entrapment. Where, 

however, the government that advises and the 

government that prosecutes are not the same, 

the entrapment problem is different. 

Etheridge, 932 F.2d at 321 (quoting Bruscantini, 761 F.2d at 

641-42).8

 

 8Both Brady and Bruscantini were decided on fairness 

grounds, notwithstanding Brady's criticism of Bruscantini as 
- 17 - 

 III. 

 In the present case, the trial court found that Miller's 

probation officer and representatives from ATF and VDGIF told 

Miller that he could possess a muzzle-loading rifle.9

 The trial 

court concluded that Miller had established the legal sufficiency 

of the content of the information he received, viz., an 

affirmative assurance that certain conduct--his possession of the 

muzzle loader--was lawful. Cf. Aquino-Chacon, 109 F.3d at 939 

(explaining that defendant must show more than "vague or even 

contradictory" statements by government; must demonstrate that 

there was "active misleading"); Clark, 986 F.2d at 69 (holding 

observation upon which defendant allegedly relied not an 

"assurance"). 

 Moreover, there can be no doubt that the sources upon which 

appellant relied--a federal ATF agent, a VDGIF agent, and his 

probation officer--were "state actors." Cf. Clark, 986 F.2d at 

69 (taxidermist not government official); Indelicato, 887 F. 

Supp. at 25 (private attorney not government official). The 

determinative issue, therefore, is whether these sources were 

legally sufficient to invoke the due process defense, viz., 

whether the sources were charged by law with responsibility for 

(..continued) 

relying on agency principles. 

 9Contrary to the Commonwealth's contention, the trial court 

admitted for the truth of the matter asserted appellant's 

testimony as to what his probation officer told him. The trial 

court deemed the hearsay to be an admission by the Commonwealth. 
- 18 - 

defining permissible conduct with respect to offense for which 

Miller was convicted.10

 We hold that Miller's case fails as a matter of law with 

respect to the ATF agent and the VDGIF agent. Neither of those 

agents was charged by law with responsibility for defining 

permissible conduct under Code § 18.2-308.2. The ATF agent, 

although arguably charged with such responsibility under federal 

firearms laws, has no such duty with respect to Virginia law. 

The ATF officer's opinion as to whether Miller could possess a 

muzzle loading rifle under Virginia law simply does not invoke 

due process concerns in the Commonwealth of Virginia's bid to 

prosecute Miller. See Etheridge, 932 F.2d at 321; Bruscantini, 

761 F.2d at 642; Brady, 710 F. Supp. at 295. Likewise, the 

Commonwealth of Virginia has not charged the VDGIF with the duty 

of defining permissible conduct under Code § 18.2-308.2. The 

VDGIF exists to provide public, informational and educational 

services related to Title 29.1, which concerns Game, Inland 

Fisheries and Boating. See Code § 29.1-109.11 It is the agency 

 

 10Indeed, we find this to have been precisely the issue upon 

which the trial court disposed of the case. The trial judge 

found that the officials who advised Miller did not "rise to the 

level" of the authorities "upon which he could properly rely." 

 11Code § 29.1-109 provides: 

 A. The Department of Game and Inland 

Fisheries shall exist to provide public, 

informational and educational services 

related to this title, and to serve as the 

agency responsible for the administration and 

enforcement of all rules and regulations of 

the Board, the statutory provisions of this 
- 19 - 

(..continued) 

responsible for the administration and enforcement of all rules 

and regulations of Title 29.1 and related acts, but it is not 

title, and related legislative acts. 

 B. The Board shall appoint a Director to 

head the Department and to act as principal 

administrative officer. In addition to the 

powers designated elsewhere in this title, 

the Director shall have the power to: 

 1. Enforce or cause to be enforced all 

laws for the protection, propagation and 

preservation of game birds and game animals 

of the Commonwealth and all fish in the 

inland waters thereof. Inland waters shall 

include all waters above tidewater and the 

brackish and freshwater streams, creeks, 

bays, including Back Bay, inlets, and ponds 

in the tidewater counties and cities. 

 2. Initiate prosecution of all persons 

who violate such laws, and seize and 

confiscate wild birds, wild animals and fish 

that have been illegally killed, caught, 

transported or shipped. 

 3. Employ persons necessary for the 

administrative requirements of the Board and 

to designate the official position and duties 

of each. The salaries of all such employees 

shall be as provided in accordance with law. 

 4. Perform such acts as may be necessary 

to the conduct and establishment of 

cooperative fish and wildlife projects with 

the federal government as prescribed by acts 

of Congress and in compliance with rules and 

regulations promulgated by the Secretary of 

Interior. 

 5. Make and enter into all contracts and 

agreements necessary or incidental to the 

performance of his duties and the execution 

of his powers, including, but not limited to, 

contracts with the United States, other state 

agencies and governmental subdivisions of the 

Commonwealth. 
- 20 - 

charged with defining what conduct Code § 18.2-308.2 proscribes. 

 Thus, the opinion of VDGIF with respect to the permissibility of 

Miller's possessing a muzzle loader does not implicate due 

process concerns. Cf. PICCO, 411 U.S. at 674; Cox, 379 U.S. at 

568; Raley, 360 U.S. at 439. 

 By contrast, however, Miller's probation officer was charged 

by the Commonwealth with responsibility for defining Miller's 

permissible conduct with respect to Code § 18.2-308.2. The 

legislature granted the probation officer supervisory 
- 21 - 

responsibility for Miller's conduct and treatment during the 

course of his probation, see Code § 53.1-145,12 including the 

 12Code § 53.1-145 provides: 

 In addition to other powers and duties 

prescribed by this article, each probation 

and parole officer shall: 

 1. Investigate and report on any case 

pending in any court or before any judge in 

his jurisdiction referred to him by the court 

or judge; 

 2. Except those persons placed in probation 

supervision programs established under 

§§ 53.1-181 and 53.1-182.1, supervise and 

assist all persons within his territory 

placed on probation or post-release 

supervision pursuant to § 19.2-295.2, secure, 

as appropriate and when available resources 

permit, placement of such persons in a 

substance abuse treatment program which may 

include utilization of acupuncture and other 

treatment modalities, and furnish every such 

person with a written statement of the 

conditions of his probation or post-release 

supervision and instruct him therein; 

 3. Supervise and assist all persons within 

his territory released on parole, secure, as 

appropriate and when available resources 

permit, placement of such persons in a 

substance abuse treatment program which may 

include utilization of acupuncture and other 

treatment modalities, and, in his discretion, 

assist any person within his territory who 

has completed his parole or has been 

mandatorily released from any correctional 

facility in the Commonwealth and requests 

assistance in finding a place to live, 

finding employment, or in otherwise becoming 

adjusted to the community; 

 4. Arrest and recommit to the place of 

confinement from which he was released, or in 

which he would have been confined but for the 

suspension of his sentence or of its 

imposition, for violation of the terms of 
- 22 - 

(..continued) 

responsibility for arresting him for a violation of his 

probation. Violation of the law regarding the possession of a 

firearm by a convicted felon was surely one. It follows that a 

probation officer, statutorily required to supervise, assist, and 

provide a probationer with a statement of the conditions of his 

probation, post-release supervision pursuant 

to § 19.2-295.2 or parole, any probationer, 

person subject to post-release supervision or 

parolee under his supervision, or as directed 

by the Chairman, Board member or the court, 

pending a hearing by the Board or the court, 

as the case may be; 

 5. Keep such records, make such reports, 

and perform other duties as may be required 

of him by the Director or by regulations 

prescribed by the Board of Corrections, and 

the court or judge by whom he was appointed; 

 6. Order and conduct, in his discretion, 

drug and alcohol screening tests of any 

probationer, person subject to post-release 

supervision pursuant to § 19.2-295.2 or 

parolee under his supervision who the officer 

has reason to believe is engaged in the 

illegal use of controlled substances or 

marijuana or the abuse of alcohol. The cost 

of the test may be charged to the person 

under supervision. Regulations governing the 

officer's exercise of this authority shall be 

promulgated by the Board; and 

 7. Have the power to carry a concealed 

weapon in accordance with regulations 

promulgated by the Board and upon the 

certification of appropriate training and 

specific authorization by a judge of the 

circuit court to which the officer is 

assigned. 

 Nothing in this article shall require 

probation and parole officers to investigate 

or supervise cases before juvenile and 

domestic relations district courts. 
- 23 - 

release from confinement, as well as to arrest a probationer for 

a violation of the terms of his release, is, a fortiori, charged 

by law with defining a probationer's permissible or impermissible 

conduct. The authority to enforce the law and effect an arrest, 

of necessity, requires an interpretation of what constitutes 

permissible conduct. For these reasons, we hold that the trial 

court erroneously concluded that Miller's probation officer was 

not a source legally sufficient to invoke the Due Process Clause 

as a bar to his prosecution and conviction. 

 It remains only to be determined whether, based on the 

totality of the circumstances, Miller's reliance on the advice of 

his probation officer was reasonable and in good faith. Upon 

review of the uncontradicted evidence in this case, we find, as a 

matter of law, that it was. 

 Miller's conviction is accordingly reversed, and the case 

dismissed. 

Reversed and dismissed.